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By: Hasan Abdullah, Esq.

So you’ve been laid off or have been benched without pay, and you’re concerned about your H-1B work status. Perhaps you’ve been without employment for months, and finally found an interested employer who told you that they would hire you, but their attorney told them that you were not fine to transfer because you don’t have pay stubs to prove that you were maintaining status. People have told you the standard advice that “there is no grace period” in H-1B once you lose your job, and that you are therefore now unlawfully present in the US.

The truth of the matter is, even when you’ve been laid off or benched, you might not necessarily have to leave the country, especially if your termination was due to your employer’s unscrupulous conduct. Factors that weigh into the analysis as to whether you may port your H-1B to an new employer in the US include: 1) whether you have an unexpired H-1B visa in your passport, 2) whether your employer failed to pay you for your work, 3) whether your employer threatened you in any way, and 4) how long you’ve been without pay.

The following flowchart relating to applying for a change of H-1B employer gives an idea of how these factors come into play:

Great care must be exercised in deciding how to proceed if you’ve been laid off while in H-1B status, because consequences of being an overstayer can be disastrous. For example, if an individual is an overstayer for 180 days or more, a 3-year inadmissibility bar is triggered. So although this article provides some optimism, in certain cases, it really is a good idea to leave the country immediately. A discussion of the best course of action with a knowledgeable immigration attorney is of great importance.

Disclaimer: This article is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this website you understand that there is no attorney client relationship between you and the website publisher. The website should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

On Feb. 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act (commonly known as the “stimulus bill”), Public Law 111-5. The stimulus bill contained the Employ American Workers Act (“EAWA”), Pub. L. 111-5, Div. A, Title XVI, § 1611.
EAWA took effect on Feb. 17, 2009 and will expire on Feb. 17, 2011.
EAWA prevents a company from displacing U.S. workers when hiring H-1B specialty occupation workers if the company received funds through the Troubled Asset Relief Program (TARP), Pub. L. 110-343, Div. A, Title I, or under section 13 of the Federal Reserve Act (collectively referred to “covered funding”).
EAWA affects the current Labor Condition Application (LCA) process administered by Department of Labor (DOL) and the USCIS petition process for companies seeking H-1B workers. Companies subject to EAWA will now need to make new statements regarding recruitment and hiring of U.S. workers.
Under EAWA, any company that received covered funding and seeks to hire H-1B workers is considered to be an “H-1B dependent employer.”

H-1B Dependent Employer

An H-1B dependent employer must make the following additional attestations to the U.S. Department of Labor (DOL) when filing a Labor Condition Application (LCA)

• The employer has taken or will take good faith steps meeting industry-wide standards to recruit U.S. and will offer compensation that is at least as great as those offered to the H-1B nonimmigrant.  U.S. workers are defined as U.S. citizens or nationals, lawful permanent resident aliens, refugees, asylees, or other immigrants authorized to be employed in the United States (i.e., workers other than nonimmigrant aliens)
• The employer has offered or will offer the job to any U.S. worker who applied and is equally or better qualified for the job that is intended for the H-1B nonimmigrant
• The employer will not displace any similarly employed U.S. worker within the period beginning 90 days before and ending 90 days after the date of filing a petition for an H-1B nonimmigrant supported by this application. A U.S. worker is displaced if the worker is laid off from a job that is essentially the equivalent of the job for which an H-1B nonimmigrant is sought
• The employer will not place an H-1B worker to work for another employer unless it has inquired whether the other employer has displaced or will displace a U.S. worker within 90 days before or after the placement of the H-1B worker.

See the link to the right to the Department of Labor Web Site.

Affected U.S. Companies

USCIS is working with the Department of the Treasury, the Federal Reserve and other relevant agencies to identify companies that have received covered funding. USCIS, however, expects companies seeking to hire H-1B workers to know whether or not they have received covered funding and act accordingly with respect to hiring an H-1B nonimmigrant.

• EAWA only applies to U.S. companies that received covered funding and want to hire new H-1B workers.
• The normal exception to the H-1B dependent employer requirements that an H-1B nonimmigrant is exempt from the dependency calculation if the individual earns a salary of at least $60,000 or has a master’s degree or higher is not applicable to companies that have received covered funding.

H-1B Nonimmigrant

• An H-1B nonimmigrant is a foreign national who comes to the United States temporarily to work in a specialty occupation. A specialty occupation position is one that generally requires a bachelor’s degree or higher and specialized knowledge.

For more information please see the link to the left for H-1B Specialty Occupations under Temporary Workers.

How EAWA Applies to H-1B Hires

EAWA applies to any “hire” taking place on or after Feb. 17, 2009, and before Feb. 17, 2011. EAWA defines “hire” as an employer permitting a new employee to commence a period of employment; that is, the introduction of a new employee to the employer’s U.S. workforce.

EAWA applies to

• Any LCA or petition filed on or after Feb. 17, 2009 involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status.
• New employment (hires) based on a petition approved before Feb. 17, 2009, if the H-1B employee had not actually commenced employment before that date.

EAWA does not apply to

• A petition to extend the H-1B status of a current employee with the same employer.
• A petition seeking to change the status of a current U.S. work-authorized employee to H-1B status with the same employer.

If You Are Filing an H-1B Petition

Please comply with the following in order to avoid processing delays

• Use a version of Form I-129, Petition for a Nonimmigrant Worker, with a revision date of March 11, 2009 or later and ensure that you properly answer Question A.1.d on the H-1B Data Collection and Filing Fee Exemption Supplement, or
• Submit page 13 of Form I-129 with a revision date of March 11, 2009 or later and answer Question A.1.d. if you are using a version of Form I-129 with a revision date earlier than March 11, 2009

If You Have Repaid Covered Funding

USCIS understands that some employers who received covered funding may have subsequently repaid their obligations.

• Employers who have repaid their obligations should answer “no” to Question A.1.d. on the H-1B Data Collection and Filing Fee Exemption Supplement.
• If an employer wishes to provide further information with the petition to assist USCIS in determining that its statement regarding its status for purposes of EAWA is correct, it may do so.

For information on whether covered funding obligations have been repaid, recipients of TARP funding should seek guidance from the Department of Treasury, or the Federal Reserve, by seeing the links to the right.

Please Note: Processing delays or a denial of the H-1B petition may result if the LCA statements do not correspond with the H-1B petition, unless any inconsistency is explained in the petition.
For example, if the LCA includes the additional statements, but Question A.1.d is answered “no,” the employer can explain that it had received covered funding at the time of filing the LCA but repaid the obligation before filing the Petition for Nonimmigrant Worker, (Form I-129).
However, if the employer indicates on its petition that it received covered funding, but the LCA does not contain the proper statements relating to H-1B dependent employers, the H-1B petition will be denied.

How to successfully prepare an Immigration case during these challenging times?

>> Early preparation and an experienced law firm assistance is key to success <<

Attend our upcoming FREE Seminar

Saturday, February 06^th at 11:00a

Location: Offices of Shah Peerally Law Group PC

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Newark, CA 94560

CALL (510) 742 5887 to reserve your seat

A recent memo released by the USCIS service center is causing high anxiety and concerns, among IT consulting firms, in regards to filing for H1B. Our latest immigration article “ Will the Donald Neufeld Memo regarding H1B be a harmless paper Tiger?” provides an initial analysis of the situation. At the above-mentioned seminar, we will discuss such issues and possible solutions based on our knowledge.

Our US immigration law firm in the Bay Area has already handled more than a thousand immigration cases and more.

Indeed, we are already entering the H1B season and many companies often wait the final days to select their candidates. This year, Shah Peerally Law Group PC is advising their clients to be ready early. The Bay Area Law firm has also published a paper on “Reasons Why Companies Should Prepare their H1Bs early- Delays Caused by i-Cert Glitches” to encourage you to seek assistance early.

Shah Peerally Law Group PC also offers services in other areas of immigration law including but not limited to Labor Certifications, I-140 Petitions, Marriage Cases and Parents Petitions, and Investors’ Treaty Visas.

“We understand your issues, we understand you. Let our experience, dedication and compassion be at your service. Our success stories and testimonials speak for us”, Shah Peerally, Esq.

By: Hasan Abdullah, Esq.

On January 8, 2010, Donald Neufeld, Associate Director of Service Center Operations, has released a guidance memo to USCIS Service Center Directors on adjudicating H-1B petitions. It specifically provides guidelines for service center directors to decide the issue of whether an “employer-employee” relationship exists when an employer files an H-1B petition.

The Donald Neufeld Memo has been a source of great concern to employment-based immigration lawyers and IT consulting companies across the country. The question is whether this memo will be a real tiger, or instead, a paper tiger that only appears threatening but is in fact harmless.

Right of Control is Emphasized

The memo states that USCIS has relied on common law principles and Supreme Court cases to determine what constitutes an employer-employee relationship. The specific case which this memo cites is “Nationwide Mutual Ins. Co. v. Darden, 503 US 318 (1992).” According to this case, an employer-employee relationship is established when considering a totality of circumstances, and lists the following factors:

1) Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
2) If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?
3) Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
4) Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
5) Does the petitioner hire, pay, and have the ability to fire the beneficiary?
6) Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
7) Does the petitioner claim the beneficiary for tax purposes?
Does the petitioner provide the beneficiary any employee benefits?
9) Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
10) Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
11) Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?

Attorneys have observed that most of the above criteria do not necessary apply to IT consulting companies since most IT consulting companies do not directly supervise the work of their employees. Furthermore, the workers usually implement the end-client’s tools, and proprietary information rather than anything that belongs to the IT consulting company.

The Memo Takes Direct Aim at IT Consulting Companies

After the memo provides the basic criteria to determine whether an employer-employee relationship exists, it then provides examples of situations that do and do not qualify a petitioner as an employer. The passage referring to “Third Party Placement/‘Job Shops’” is what is creating the most alarm. The passage specifically states that the following scenario is not a valid employer-employee relationship:

“The petitioner is a computer consulting company. The petitioner has contracts with numerous outside companies in which it supplies these companies with employees to fulfill specific staffing needs. The specific positions are not outlined in the contract between the petitioner and the third-party company but are staffed on an as-needed basis. The beneficiary is a computer analyst. The beneficiary has been assigned to work for the third- party company to fill a core position to maintain the third-party company’s payroll. Once placed at the client company, the beneficiary reports to a manger who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no proprietary information of the petitioner is used by the beneficiary to complete any work assignments. The beneficiary’s end-product, the payroll, is not in any way related to the petitioner’s line of business, which is computer consulting. The beneficiary’s progress reviews are completed by the client company, not the petitioner.

[Petitioner Has No Right to Control; No Exercise of Control]

So it appears that USCIS has taken direct aim to limit H-1Bs from going to IT consulting company employees.

The Neufeld Memo Will Not Change How we File H-1B Petitions for IT Consulting Company – Agent Acting as Employer Alternative

The Neufeld memo specifically addresses situations where a “United States employer” is filing an H-1B petition, but there is an alternate track which practitioners may successfully use for H-1B petitions for IT consulting companies. This alternate track involves expressing that the IT consulting company is not a direct employer, but rather an “agent acting as an employer.”

The Neufeld memo seems to misguide the reader into thinking that only direct employers may file H-1B petitions. However, the H-1B regulation, 8 CRF 214(h)(2)(i)(F) specifically states that “A United States agent may file a petition in cases involving workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers.” Furthermore, the petition filed by an agent performing the function of an employer must “guarantee wages and other terms and conditions of employment by contractual agreement with the beneficiary of the petition… (and) provide an itinerary of definite employment… (and) in questionable cases, a contract between the employers and the beneficiary may be required.”

In IT consulting company H-1B petitions, we have always expressed that employees placed at an end client location are working for an “agent performing the function of an employer.” As the regulations demand, we provide detailed itineraries of service and proof that wages and terms of employment are guaranteed by the petitioner, in addition to contracts between the employers and the beneficiary, or at least letters from the end-client confirming the employment relationship.

Conclusion

Only time will tell how this memo will be applied in practice. It could be possible that USCIS will abuse its discretion against IT consulting company petitions, even in petitions that clearly establish that the employer is an agent acting as an employer. But any time USCIS abuses its discretion, there will be a landslide of appeals. There is likelihood that it will not be “the end of the world” for IT consulting companies seeking to employ H-1B workers, and that the memo is indeed merely a paper tiger.

http://www.mercurynews.com/breaking-news/ci_14288360

As of January 4, 2010, infection with the Human Immunodeficiency Virus (HIV) is no longer a ground of inadmissibility. If you have the HIV infection, you are no longer inadmissible to the United States, and are no longer required to file Form I-601 because of your HIV infection.

As part of the revisions to Form I-601, any reference to HIV infection in the form and the instructions were removed. In addition, USCIS today announced that there are revised filing instructions and addresses for applicants filing Form I-601, Application for Waiver of Ground of Inadmissibility.

The change of filing location is part of an overall effort to transition the intake of benefit forms from USCIS local offices and Service Centers to USCIS Lockbox facilities. By centralizing form and fee intake to a Lockbox environment, USCIS can provide customers with more efficient and effective initial processing of applications and fees.

Beginning 1/27/2010, the following filing location changes are in effect for applicants located in the United States:

* Applicants who a) have an approved Form I-360 based as a Self-petitioning spouse or child of an abusive U.S. Citizen or Lawful Permanent Resident, or

b) are a T nonimmigrant seeking adjustment of status, and who are filing Form I-601, must file their application at the USCIS Vermont Service Center; USCIS Vermont Service Center 75 Lower Welden Street St. Albans, VT 05479-0001.

* Applicants who are filing Form I-601 together with Form I-485, Application to Register Permanent Residence or Adjust Status, must file the I-485 and the I-601 at the filing location specified on the Form I-485 instructions.

* Applicants who have a pending Form I-485 must file Form I-601 with a USCIS Lockbox facility, based on the first 3 letters in their application receipt number. Detailed guidance can be found in updated Form I-601 instructions as well as at www.uscis.gov. Applicants must include a copy of the I-797C, Notice of Action, showing that their Form I-485 was accepted.

* Applicants for Temporary Protected Status (TPS) under the Immigration and Nationality Act Section 244, must file Form I-601 with Form I-821, Application for Temporary Protected Status. Consult the applicable Federal Register notice for the applicant’s country’s TPS designation.

* Individuals in removal proceedings, must file Form I-601 with the Executive Office for Immigration Review (EOIR) office with jurisdiction over your case and according to the instructions that are provided to the individual in court. USCIS Offices will forward incorrectly filed I-601 applications to the USCIS Lockbox facilities for 30 days, until 2/27/2010. After that, incorrectly filed applications will be returned to the applicant, with a note to send the application to the correct location.

Applicants located outside of the United States will continue to file their Form I-601 with the U.S. Embassy or consulate where they are applying for a visa. When filing Form I-601 at a Lockbox facility, applicants may elect to receive an email and/or text message notifying them that USCIS has accepted their applications. To receive notification, the applicant must complete an E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of the application.

For More information call 510.742.5887 or email us on help@peerallylaw.com

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